Pitchford v. State


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Docket Number: 2006-DP-00441-SCT
Linked Case(s): 2006-DP-00441-SCT
Supreme Court: Opinion Link
Opinion Date: 06-24-2010
Opinion Author: Dickinson, J.
Holding: Conviction of Capital Murder and Sentence of Death by Lethal Injection, Affirmed.
Additional Case Information: Topic: Death penalty direct appeal - Jury selection process - Continuances - Prosecutorial misconduct - Victim's family - Informant testimony - M.R.E. 403 - Mistrial - Suppression of evidence - Confessions - Prior bad acts - M.R.E. 404(b) - Expert testimony - Jury instructions - Mitigation evidence - Penalty phase evidence - Death penalty - Disproportionate sentence - Section 99-19-101(d)
Judge(s) Concurring: Waller, C.J., Carlson, P.J., Randolph, Lamar, Chandler and Pierce, JJ.
Dissenting Author : Graves, P.J., Dissents With Separate Written Opinion
Dissent Joined By : Kitchens, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL
Trial Court: Date of Trial Judgment: 02-09-2006
Appealed from: Grenada County Circuit Court
Judge: Joseph H. Loper
Disposition: Pitchford was indicted, tried, and convicted of capital murder, and the jury found that he should be executed by lethal injection.
District Attorney: Doug Evans
Case Number: 2005-009-CR
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Terry Pitchford




 ALISON R. STEINER, RAY CHARLES CARTER



  
  • Appellant #1 Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: PATRICK JOSEPH McNAMARA, JR.  
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    Topic: Death penalty direct appeal - Jury selection process - Continuances - Prosecutorial misconduct - Victim's family - Informant testimony - M.R.E. 403 - Mistrial - Suppression of evidence - Confessions - Prior bad acts - M.R.E. 404(b) - Expert testimony - Jury instructions - Mitigation evidence - Penalty phase evidence - Death penalty - Disproportionate sentence - Section 99-19-101(d)
    Summary of the Facts: Terry Pitchford was convicted of capital murder, and the jury found that he should be executed by lethal injection. He appeals.
    Summary of Opinion Analysis: Issue 1: Jury selection process Pitchford argues that the State exercised its peremptory strikes in a racially discriminatory manner. Pitchford points out in his brief that the State used only seven of its peremptory strikes, four of which removed African-Americans from the venire. As a result, only one African-American remained on the jury of fourteen (twelve jurors and two alternates). This, Pitchford argues, is incompatible with the fact that, in 2006, African-Americans made up approximately forty percent of Grenada County’s population. Although Pitchford’s counsel made these assertions, he presented the trial judge no evidence of the racial makeup of Grenada County. And regardless of the racial makeup of Grenada County, the record supports the trial court’s finding of a prima facie showing of discrimination. The State used fifty-seven percent of its peremptory strikes (four out of seven) to remove African-Americans from a venire comprised of twenty-six percent African American and seventy-four percent white. While the difference in these percentages is not so great as to constitute, as a matter of law, a prima facie finding of discrimination, it is sufficient for a trial judge – who was able to observe the voir dire process, and in the exercise of sound discretion – to so find. Pitchford provided the trial court no rebuttal to the State’s race-neutral reasons for striking the jurors. The trial judge cannot be faulted for failing to discern whether the State’s race-neutral reasons were overcome by rebuttal evidence and argument never presented. The State provided adequate race-neutral reasons for striking each of the four African-Americans. Pitchford also argues that the death qualification process, itself, so disproportionately impacts black jurors that it amounts to a violation of the Equal Protection Clause, and that the trial judge improperly removed for cause jurors who were properly qualified. In the context of the right to a trial by a jury of one’s peers, one’s peers are not determined by one’s race. The trial judge did not commit error by striking for cause the jurors who indicated they could not impose the death penalty. Pitchford argues that the trial court improperly prevented him from asking potential jurors whether they would consider specific mitigating factors. A trial court is not required to allow questions regarding how a juror would vote during the penalty phase, if presented with specific mitigating factors. Thus, there is no merit to this argument. Issue 2: Continuances Pitchford argues he should have been granted continuances, and that the trial court erred in refusing to delay the sentencing proceedings so that a necessary mitigation witness could be present to testify. He argues that his failure to obtain the continuance caused his counsel to render ineffective assistance of counsel throughout the trial. Pitchford was represented at trial by three attorneys. Because most of these claims of ineffective assistance of counsel necessarily will involve evidence outside the record, they are more appropriately presented in a petition for post-conviction relief. Without foreclosing Pitchford’s right to raise the issue of ineffective assistance of counsel in a subsequent post-conviction-relief proceeding, the trial judge did not abuse his discretion by denying Pitchford’s motion for continuance since one attorney had served as Pitchford’s counsel for more than a year, and another of his attorneys had been working on the case for more than eight months. Issue 3: Prosecutorial misconduct Pitchford argues that the prosecutor engaged in misconduct. Pitchford argues the prosecutor intentionally violated the Rules of Evidence in order to present misleading or inflammatory evidence to the jury, and made improper appeals to the jury at both the guilt and sentencing phases of the trial. Pitchford also claims the prosecutor used near-leading or misleading questions on its own witnesses, coached witnesses, interjected information into the responses from witnesses, and rested its arguments on facts not in evidence or inferences too attenuated from the facts which were in evidence. Pitchford’s counsel had every right to attack and question the credibility of witnesses who had testified for the prosecution. While some of the comments made by the prosecutor were inappropriate, the errors were harmless in light of the overwhelming evidence of guilt. Issue 4: Victim’s family Pitchford argues that the jury was improperly influenced by displays of emotion from the victim’s family. The incidents – to the extent they are documented in the record – were minor. Furthermore, Pitchford failed to request a curative instruction to the jury. Issue 5: Informant testimony Pitchford argues that the trial court improperly allowed the testimony of two witnesses who had been incarcerated with Pitchford and alternatively, that the trial court erred by failing to give a requested cautionary instruction concerning informant testimony. He bases his argument on M.R.E. 403. Although Pitchford did raise in the trial court the issue of reliability, he did not raise a Rule 403 objection. Thus, the issue is procedurally barred. In addition, the trial court granted a cautionary instruction that advised the jury to view informant testimony with caution and suspicion. Thus, there is no error. Issue 6: Mistrial Pitchford argues that the trial court should have declared a mistrial after a State witness improperly testified to prejudicial and improper matters during cross-examination, i.e., the witness said that Pitchford had sold drugs to him. A trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case. While the witness’s statement was clearly improper, the trial court took immediate and appropriate steps to cure any prejudicial effect. It is presumed that jurors follow the instructions of the court. Issue 7: Suppression of evidence Pitchford argues the .38 caliber revolver used in the shooting and later discovered in his car should have been suppressed as the product of an illegal search. Pitchford admits that he initially consented to the search. However, he claims he withdrew his consent. Voluntary consent eliminates the warrant requirement. The record shows that Pitchford consented to the search and never withdrew his consent. Issue 8: Confessions Pitchford argues that the trial court should have suppressed five statements he made to police officers after his arrest because the statements were taken in violation of his Fifth, Sixth, and Fourteenth Amendment rights. A criminal defendant may waive effectuation of the right to remain silent and the right to the presence of an attorney, provided the waiver is made voluntarily, knowingly and intelligently. The burden of proving the voluntariness of the confession is on the State. The officers who interrogated Pitchford testified he was offered no reward, and he was not threatened or coerced, and that his statement was voluntarily given. Such testimony creates a prima facie case of voluntariness. Pitchford admits that the State obtained a written Miranda waiver prior to his first statement. However, he insists he gave no waiver prior to his next three statements. The record supports the trial court’s findings that, under the totality of the circumstances, Pitchford voluntarily and intelligently waived his privilege against self-incrimination. Issue 9: Prior bad acts Pitchford argues that the State improperly introduced evidence of a prior crime. Pitchford concedes that evidence of other crimes may be admissible under M.R.E. 404(b) in order to show intent, preparation, plan, or knowledge, or where necessary to tell the complete story so as not to confuse the jury. However, Pitchford disputes the trial court’s ruling that the probative value of the evidence outweighed its prejudicial effect under M.R.E. 403. Rule 404(b) exceptions are, indeed, subject to a Rule 403 balancing test. Here, the trial court did not abuse its discretion in admitting the evidence under Rules 404(b) and 403. Issue 10: Expert testimony Pitchford argues that the trial court erroneously allowed the jury to hear opinions from Dr. Steven Hayne, who was tendered by the State – without objection – as an expert in the field of forensic pathology. He argues that Dr. Hayne’s testimony concerning the gunshot wound was outside his area of expertise. Dr. Hayne is clearly qualified to provide opinions as to the nature and number of wounds, and whether those wounds are consistent with a .22 caliber cartridge or a .38 caliber ratshot cartridge. Such testimony falls squarely within the expertise of a forensic pathologist. Issue 11: Jury instructions Pitchford argues that the trial court erroneously excluded several of his jury instructions and included several of the State’s jury instructions. With regard to one of his proposed instructions, the record shows that Pitchford’s counsel withdrew the instruction. The trial court will not be held in error for failing to give a withdrawn instruction. Pitchford complains that some of the State’s instructions failed to give any guidance to the jury as to what it should do if it failed to find any of the requisite elements of capital murder and armed robbery beyond a reasonable doubt. The instructions at issue clearly required the jury to find Pitchford guilty of each element of the crime, beyond a reasonable doubt, so this assignment of error has no merit. Pitchford also complains that an instruction included both accomplices and informants in the same instruction. While it is true that a defendant is entitled to have his theory of the case presented in the jury instructions, the entitlement is limited. The court may refuse an instruction if it is covered fairly elsewhere in the instructions. The trial court was within its discretion in denying the instruction as being fairly included elsewhere. Issue 12: Mitigation evidence Pitchford argues that the trial court improperly disallowed mitigation evidence that would have allowed him to avoid the death penalty. The defense attempted to solicit testimony from the mother of Pitchford’s two-year-old son about the effect Pitchford’s death would have on the child. Evidence of a criminal defendant’s death and the effect it would have on the life of his family is not relevant and is properly excluded since such evidence does not impact on the defendant’s character, the record, or the circumstances of the crime. Pitchford also wanted to produce a “day-in-the-life” video of himself and his son interacting. Pitchford argues now that it was reversible error for the trial court to prevent this evidence from being obtained. However, Pitchford cites no authority for the proposition that the trial judge was required to compel its production. Pitchford argues that the trial court erred by refusing to permit him to put into context the mitigation evidence about how he reacted to his father’s illness and death. Because the testimony did not relate to defendant’s character, the record, or the circumstances of the crime, the trial court properly excluded it. Issue 13: Penalty phase evidence Pitchford argues that the trial court erred by allowing improper evidence during the penalty phase of the trial. His first argument is a general allegation that the court permitted the jury to hear victim-impact testimony beyond the scope allowed by the law. However, there is nothing to support his argument. He also argues that allowing a witness to read a letter written by her great-niece violated his Sixth Amendment right to confront a witness against him. The confrontation clause acts so as to even restrict proof which under our evidence rules would be classified as admissible hearsay. While the trial court erred in allowing the witness to read the letter written by her great-niece, the error was harmless in light of the totality of the evidence presented during the sentencing phase. Pitchford also argues that the trial court improperly allowed the State to make a statement. As Pitchford has presented no relevant authority in support of his argument, it is dismissed. Issue 14: Sentencing phase instructions Pitchford argues that a sentencing instruction did not expressly inform the jury that, even though it might find the aggravating factors outweighed the mitigating circumstances, it could nevertheless sentence him to life. A defendant is entitled to have his theory of the case presented in the jury instructions. However, the court may refuse an instruction if it incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. The instruction in this case does not require the jury to impose the death penalty, even should it find the aggravating factors outweighed the mitigating circumstances. The trial court’s use of the term “may” – while not the strongest language to make the point – was sufficient to convey to the jury that it was not required to impose the death penalty, even should it find the aggravating factors outweighed those submitted in mitigation. Pitchford also argues that the trial court erred in failing to give four of his proposed sentencing instructions. With regard to the first instruction, the trial court was within its discretion to deny the instruction, reasoning, “[t]his would indicate to the jury that a certain deadline was going to be set for them and after that they couldn’t – that the case would be taken away from them.” With regard to another instruction, the court did not abuse its discretion in denying it, since it was fairly covered elsewhere. Pitchford argues that the trial court erred in failing to allow the mitigating factor – that Pitchford had mental health problems as a child that were never treated – to be considered by the jury. However, the trial court will not be held in error for refusing to submit a mitigating factor to the jury which was not grounded in the evidence. Issue 15: Death penalty Pitchford argues that his death sentence must be vacated because it violates the Constitution of the United States. Pitchford first argues that his execution by lethal injection would be in violation of the Eighth Amendment prohibition against cruel and unusual punishment. This argument has been repeatedly rejected. Pitchford argues that the indictment failed to charge all elements necessary to impose the death penalty. This argument has also been rejected. Issue 16: Disproportionate sentence The record does not show that Pitchford’s death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. Furthermore, there was sufficient evidence to support the jury’s finding of the statutory aggravating circumstance enumerated by section 99-19-101(d). A comparison of the facts of this case with factually similar cases in which the death penalty has been imposed show that the death sentence in this case is neither excessive nor disproportionate.


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